论文部分内容阅读
容许构成要件错误的刑事责任认定之所以存在诸多争议,由其自身性质难以为刑法错误归类所决定,也为犯罪论体系、故意的体系性位置以及故意确定范围等各自具有争议,并不统一的理论所影响。容许构成要件错误的处理,以假想防卫为例,选择参照适用事实错误的刑事责任效果较为妥当,但也有新的出路:从意志因素上来说,容许构成要件错误中的行为人不仅排斥危害结果,反而积极追求制止危害结果的发生,与故意犯罪中行为人具有至少容忍并不排斥的意志相反。从认识因素上说,容许构成要件错误与过失犯罪均有认识错误;从意志因素上来说,两者都是对危害结果的排斥。因此,容许构成要件错误可以成立过失犯罪,但当行为人根本不可能具有注意能力、条件和结果回避可能性的情况下,应成立意外事件。
There are many controversies about the reason of allowing criminal responsibility to make up the wrong constitutional elements. They are difficult to categorize by criminal law due to their own nature. They are also controversial and unorganized, such as criminal system, intentional systematic position and deliberate determination of scope The theory of influence. To allow the formation of the wrong components to deal with the hypothetical defense, for example, choose to refer to the application of factual error of the criminal liability effect is more appropriate, but there are new ways: from the will factor, allowing the constituent elements of error in not only reject the pernicious consequences, Instead, they actively seek to halt the occurrence of endangering consequences contrary to the will of the perpetrator who at least tolerates and does not exclude the intentional crime. Cognitively speaking, there are misunderstandings about the permissibility of constituent errors and negligent crimes, and from the will-based factor, both are the exclusion of the harmful result. Therefore, allowing the wrong constitutional elements to establish negligence crimes, but when the perpetrator is unlikely to have the ability to pay attention to the conditions and the possibility of avoiding the outcome, the accident should be established.